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Bench: JUSTICE M.M. Pareed Pillay


Law Point:
To claim maintenance it is mandatory to establish due performance of marriage as per personal law.





Against the petitioner respondents filed petition under Section 125 of the Code of Criminal Procedure before the Judicial Magistrate of First Class, Kannur. First respondent claims to be the wife of the petitioner. She claimed maintenance for herself and for the second respondent, who is alleged to be the child born to her through the petitioner. The learned Magistrate granted maintenance to both of them. That has been confirmed by the Sessions Judge, Tellichery in Crl. R.P.14 of 1990.

2. Petitioner contended that the first respondent has not established her marriage with him by any cogent evidence and hence on the basis of Ext. P-1 registered document there cannot be any presumption of the marriage. Counsel for the petitioner submitted that even assuming that Ext. P-1 was really executed by the petitioner willingly and voluntarily the same cannot be considered as evidencing valid marriage in view of total lack of pleadings with respect to the solemnisation of the marriage.

3. Ext. P-1 was executed on 3-10-1987. In the said document it is mentioned that the petitioner and the first respondent were in love with each other, that they were living as husband and wife and that it became necessary to execute the said document. It is also mentioned that the petitioner had agreed to accept the first respondent as his wife and that both of them agreed to live as husband and wife from the date of the document.

4. Learned Counsel for the petitioner submitted that Ext-P-1 is hardly sufficient to prove the marriage between the petitioner and the first respondent and therefore on its basis is not possible to conclude that there was any sloemnisation of marriage. Section 7 of the Hindu Marriage Act provides that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. It makes the postition clear that where such rites and ceremonies include the Saptapadi, the marriage becomes complete and binding when the seventh step is taken. Counsel for the petitioner pointed out that neither in pleadings nor in evidence the first respondent has a case that the marriage was solemnised in accordance with the customs prevailing in her community and hence no Court of law could have accepted her contention that she was married by the petitioner.

5. First respondent examined as P.W. 1 deposed that she was in love with the petitioner, that she became pregnant and that thereafter Ext. P-1 was executed. She has sworn that after Ext. P-1 she and the petitioner stayed together for one month and he took her to his house. She delivered the second respondent on 9-5-1988. In cross-examination she admitted that there was no solemnisation of the marriage. In the maintenance application first respondent has no case that her marriage was solemnised under any recognised customs prevalent in the locality. As marriage is disputed, the onus is on the first respondent to prove the essential ceremonies of the marriage. The person who wants the Court to uphold the marriage must affirmatively establish that the marriage was solemised in accordance with the custom and usage applicable to either of the parties. What has been stated in the petition is that on account of her relationship with the petitioner she became pregnant and they decided to live as husband and wife and executed Ext. P-1 agreement on 3-10-1987. In other words, there is no pleading in the petition that she was married by the petitioner in accordance with the customary rites and ceremonies of either party.

6. Exeuting a registered document and making a declaration therein that the executants would live as husband and wife would not confer upon them the status of a husband and wife as it is not one of the recognised forms of marriage for Hindus. Nor is it possible to hold that first respondent marriage the petitioner under the Special Marriage Act. Here execution of a registered document like Ext. P-1 does not amount to valid marriage. As P.W.1’s evidence does not reveal any solemnisation of marriage with proper ceremonies and in due form, it is difficult to accept her case that she has the status of a wife. To constitute traditional marriage involing the fire and performing Saptapadi around the sacred fire were considered by the Supreme Court as the basic requirements. But there can be marriages without observing the above two rites if the customs prevailing among the community do not insist upon them (See Sumitra Devi v. Bhikan Choudhary, AIR 1985 SC 765). But P.W. 1 does not say anything about a customary marriage. She relies only on Ext. P-1 and no other evidence to prove the marriage. The learned Sessions Judge went wrong in holding that the unequivocal declaration in Ext. P-1 is sufficient to uphold the marriage setup by the first respondent. First respondent is entitled to maintenance only merely on. the strength of Ext. P-1 As the first respondent has no case that she and the petitioner married under the Special Marriage Act and as Ext. P-1 cannot be construed as proof of a valid marriage between them, a mere declaration in Ext. P-1 would not be sufficient to hold that she is the legally wedded wife of the petitioner. That being the position, she cannot claim maintenance under Section 125 of the Code of Criminal Procedure.

7. Next question for consideration is whether the second respondent is entitled to claim maintenance. Ext. P-1 is admitted by the petitioner. The petitioner has admitted that subsequent to Ext. P-1 he had sexual relationship with the first respondent. It is the evidence of P.W.1 that even before the execution of Ext. P-1 she and the petitioner were having sexual relationship, that she became pregnant and that it necessitated the execution of Ext. P-1 agreement. Even if there is no valid marriage between the petitioner and the first respondent, as an illegitimate child the second respondent is entitled to maintenance. Under Section 125 Cr. P.C. even an illegitimate minor child is entitled to maintenance. Second respondent’s entitlement to maintenance from the petitioner as found by the Courts below cannot be interfered by this Court.

8. In the result, the maintenance awarded to the first respondent by the Courts below is set aside. Maintenance granted to the second respondent stands confirmed.

Crl. M.C. stands partly allowed.

Partly allowed.

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